New York sex shop law passes first constitutional challenge

Tuesday, March 24, 1998

NEW YORK (AP) — The city may have gained legal momentum for its plan to push sex shops to industrial areas when it won the first constitutional challenge of the law to reach a federal appeals court, lawyers say.


“Here you have the federal appeals court for the first time finding our law to be constitutional,” Jeff Friedlander, first assistant corporation counsel, said after the 2nd U.S. Circuit Court of appeals ruled late Friday.


The written decision came in a case in which a topless dancer challenged the law on the narrow issue of whether the city discriminated against topless women because topless men were not targeted as well.


Ivan S. Alter, the lawyer who brought the case on behalf of an unidentified topless dancer at the Cozy Cabin near LaGuardia Airport in Queens, and its owner, Adele Buzzetti, agreed that the court had gone well beyond the narrow scope of the case.


“I’m very disappointed. I think that the court has seriously departed from the legal standards that the Supreme Court has set,” Alter said.


The three male judges made a broad generalization of the law that could force as many as 150 of the city’s 177 sex businesses to move because they are within 500 feet of each other or near schools or houses of worship.


The panel wrote that the law “is a content-neutral time, place and manner regulation, is justified by substantial government interests and allows for reasonable alternative avenues of communication, and, accordingly, does not violate the First Amendment.”


The panel said the Cozy Cabin was not unfairly targeted by the new law just because it has bare chested women rather than men.


The appeals court said, “We must recognize that the public reactions to the exhibition of the female breast and the male breast are highly different.


“The male chest is routinely exposed on beaches, in public sporting events and the ballet, and in general consumption magazine photography without involving any sexual suggestion,” the judges wrote. “In contrast, public exposure of the female breast is rare under the conventions of our society and almost invariably conveys sexual overtones.”


Two of the judges on the panel who agreed that the city did not discriminate based on gender are on another three-judge appeals panel, which last week temporarily blocked the city from enforcing its sex shop plan.


That panel said it found legal issues raised by lawyers for the sex businesses “sufficiently troublesome” to stop the city from beginning enforcement of the law meant to banish sex shops to industrial areas.


Herald Fahringer, a lawyer for 107 of the businesses, said he was not “terribly concerned” about the broad statements made by the appeals court in Friday’s ruling because the legal issues are substantially different.


He said his case hinges on proving that more than 80 percent of the alternative locations where the city says the shops can move are not suitable sites as defined in previous U.S. Supreme Court rulings in similar cases.


The appeals court also could find that the legal issues litigated by Fahringer in state court belonged in federal court, where any findings on constitutional grounds could be appealed to the U.S. Supreme Court.


A lower court judge already had ruled the issues were fairly litigated in state court. Three weeks ago, the state Court of Appeals ruled 6-0 that the city could force the shops to move because it had provided sufficient alternative locations for the businesses.



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